The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HEIDI C. WAGNER, DOCKET NUMBER
Appellant, NY-0752-21-0126-I-1
v.
DEPARTMENT OF JUSTICE, DATE: July 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Jill McCann, Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
provide further explanation as to the basis for sustaining the appellant’s removal ,
we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was removed from her position as a GS-8 Office Assistant
effective June 21, 2021, based on two charges of sustained misconduct, i.e.,
failure to follow written or oral instructions, supported by three specifications,
and conduct unbecoming a Drug Enforcement Admin istration (DEA) employee,
supported by two specifications. Initial Appeal File (IAF), Tab 7 at 10-12.
Specifically, two of the specifications underlying the failure to follow oral or
written instructions charge concerned the appellant’s failure to ensure the
appropriate form with the required approvals was completed before advancing
agency funds to special agents. Id. at 37-38. The third specification concerned
the appellant’s failure to secure $300 of the agency’s funds, leaving the money in
an envelope outside of the secured cash utility box. Id. at 38-40. Regarding the
second charge, i.e., conduct unbecoming a DEA employee, the first specification
alleged that the appellant “consciously disregarded” agency requirements by
failing to make entries in the agency’s Daily Imprest 2 Fund Accountability Log
Book over the course of approximately 1 month. Id. at 40. The second
2
An imprest is a cash account used to pay for small, routine business expenses.
3
specification alleged that she changed $50 bills of her own personal funds for the
$100 bills of the agency’s funds, thus commingling her personal funds with the
agency’s funds. Id. at 40-43.
¶3 The appellant filed an appeal of her removal with the Board. IAF, Tab 1.
After the appellant requested a decision on the written record, IAF, Tab 21, the
administrative judge issued an initial decision affirming the appellant’s removal,
IAF, Tab 26, Initial Decision (ID). First, she noted that the appellant conceded
the misconduct, and the only two issues to be addressed were the appellant’s
arguments that the agency committed harmful error by considering a previous last
chance agreement (LCA) as an aggravating factor and that removal was
unreasonable in light of mitigating factors. ID at 2. The administrative judge
denied the appellant’s claim of harmful error, finding that she failed to prove that
the agency’s consideration of the LCA was an error or violated any rule. ID at 3.
Next, she found that there was no basis for disturbing the agency’s chosen penalty
of removal because the record included evidence that the deciding official had
considered the Douglas factors, including the appellant’s arguments regarding
mitigating factors. ID at 4. Accordingly, the administrative judge affirmed the
appellant’s removal. ID at 5.
¶4 The appellant filed a petition for review, arguing that the agency committed
harmful error by considering the LCA as an aggravating factor and that removal
was outside of the bounds of reasonableness. Petition for Review (PFR) File,
Tab 3 at 6-10. The agency responded in opposition to the petition for review.
PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant does not dispute the agency’s charges, and thus, as the
administrative judge noted, she has conceded the misconduct. ID at 2.
Accordingly, because the agency has presented evidence to support its charges,
and the appellant has admitted to the alleged misconduct, we find that the agency
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proved its charges by preponderant evidence. Furthermore, because the
misconduct occurred while the appellant was on duty, nexus is established.
Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 24 (2016) (finding
nexus when the appellant’s charged misconduct occurred at work). On review,
the appellant only disputes the administrative judge’s findings on harmful error
and mitigation, which we address in more detail below. PFR File, Tab 3 at 6-10.
The agency did not commit harmful error by considering the appellant’s previous
last chance agreement as an aggravating factor.
¶6 On April 10, 2014, the appellant signed an LCA, which held her July 26,
2012 proposed removal in abeyance for a period of 36 months. IAF, Tab 7
at 65-68. By signing the LCA, the appellant admitted that there was sufficient
evidence to sustain the charged misconduct, specifically, failure to honor just
debts (four specifications) and failure to follow written instructions (two
specifications). Id. at 65-66. She also agreed that if she failed to abide by the
provisions of the LCA, or if she was disciplined within those 36 months for
failure to honor just debts, the agency would effectuate her removal. Id. at 67.
The appellant did not violate the terms of the LCA; however, on March 16, 2021,
the appellant was issued the proposed removal at hand, which notified her that her
LCA was considered part of her “extensive past disciplinary record, which
demonstrates that [she was] on notice of the seriousness of the misconduct, and
that [she has] refused multiple opportunities for rehabilitation.” Id. at 43-44. On
review, the appellant contends, in essence, that the agency erred in considering
the LCA as an aggravating factor because the LCA “expired” 36 months after the
date of execution, and the agency could only use the LCA to effectuate the
July 26, 2012 proposed removal, and not as an aggravating factor in a later
disciplinary action. PFR File, Tab 3 at 6-8.
¶7 We agree with the administrative judge that the appellant failed to establish
that the agency committed harmful error. ID at 3. Under 5 U.S.C.
§ 7701(c)(2)(A), the Board cannot sustain an agency’s decision if the employee
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“shows harmful error in the application of the agency’s procedures in arriving at
such decision.” Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681
(1991). Reversal of an action for harmful error is warranted where the procedural
error, whether regulatory or statutory, likely had a harmful effect upon the
outcome of the case before the agency. Id. In order to prove harmful error under
the statute and the Board’s regulations, an appellant must “prove that any
procedural errors substantially prejudiced his rights by possibly affecting the
agency’s decision.” Id. (quoting Cornelius v. Nutt, 472 U.S. 648, 661 (1985)).
¶8 Although the appellant is correct that the LCA ended after 36 months, there
is nothing in the agreement that required the agency to expunge the LCA or the
underlying proposal notice after the end of the 36-month period. IAF, Tab 7
at 65-68. Similarly, there is no provision that prevents the agency from
considering the LCA as an aggravating factor in future disciplinary action
occurring after the 36-month timeframe. Id. The appellant has not cited any
policy, rule, or regulation forbidding an agency from considering an LCA in its
penalty determination, and we are unaware of any authority that stands for such a
proposition. In fact, the Board has previously found that an agency may consider
an LCA as part of its penalty determination. See Jenkins v. Department of the
Treasury, 104 M.S.P.R. 345, ¶ 16 (2007), aff’d, 244 F. App’x. 349 (Fed. Cir.
2007) (affirming the administrative judge’s findings regarding the agency’s
penalty determination, including the agency’s consideration of the appellant’s
LCA); Byers v. U.S. Postal Service, 78 M.S.P.R. 456, 463-64 (1998) (including a
previous LCA as part of the appellant’s past disciplinary record). Thus, we agree
with the administrative judge that the appellant failed to establish her claim of
harmful error. ID at 3.
6
Removal was within the bounds of reasonableness.
¶9 On review, the appellant argues that removal was unreasonable, citing
several mitigating factors, including the “unusual” 3 stress caused by the
COVID-19 pandemic, the fact that she immediately took accountability for her
“lapses,” and her potential for rehabilitation. PFR File, Tab 3 at 8 -10. While we
agree with the administrative judge’s assessment that there is no basis for
mitigating the penalty, ID at 4, we find it necessary to provide additional
information to better explain the basis for this finding.
¶10 When, as here, the agency’s charge is sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 12 (2014).
In making this determination, the Board must give due weight to the agency’s
primary discretion in exercising its managerial function of maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility, but to ensure that managerial judgment has been
properly exercised. Id. Thus, the Board will modify a penalty only when it finds
that the agency failed to weigh the relevant factors or that the penalty imposed
clearly exceeds the bounds of reasonableness. Id.
¶11 There is no basis for mitigation in this case. It is well established that the
most important factor in assessing whether the agency’s chosen penalty is within
the tolerable bounds of reasonableness is the nature and seriousness of the
3
The appellant asserts that she was under unusual stress during the COVID -19
pandemic because she was worried about the health of her daughter and son-in-law who
are nurses and her elderly parents who live out of state, as well as her own health
because she had to report to the office. PFR File, Tab 3 at 8-9. While we sympathize
with the appellant’s concerns regarding the health and wel l-being of her family and
herself, we are not certain that these stressors can be characterized as “unusual” given
that many individuals suffered similar worries during the pandemic. Moreover, the
appellant has not explained how the factors she identified contributed to her
misconduct, and they do not justify mitigation of the penalty.
7
misconduct and its relation to the employee’s duties, position, and
responsibilities. Downey v. Department of Veterans Affairs, 119 M.S.P.R. 302,
¶ 9 (2013); Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010);
Gaines v. Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003). The
appellant acted as the Imprest Fund Cashier as part of her duties, and thus was
charged with handling and protecting public funds. IAF, Tab 7 at 43. Her
misconduct is extremely serious, as it involves the mishandling of Government
funds and strikes at the very heart of her duties. See, e.g., Brown v. Department
of the Army, 96 M.S.P.R. 232, ¶ 11 (2004) (noting the seriousness of the
appellant’s offense when he was responsible for handling and managing
Government property, including Government funds, and the offense involved
misuse of Government funds).
¶12 Furthermore, the appellant has an extensive history of discipline for similar
misconduct, specifically, a 3-day suspension in March 2006 for misuse of office
and failure to honor just debts, a 3-day suspension in January 2007 for charges of
failure to honor just debts and failure to follow written instructions, a 3-day
suspension for misuse of government property (commingling) and failure to
follow written instructions in April 2010, and a proposed removal for failure to
honor just debts and failure to follow written instructions in July 2012, which was
held in abeyance by the LCA. IAF, Tab 7 at 43-44. Thus, there is simply no
doubt that the appellant had ample notice of the agency’s rules, and several
opportunities to correct her behavior. See Jinks v. Department of Veterans
Affairs, 106 M.S.P.R. 627, ¶ 25 (2007) (stating that prior discipline can be
considered as notice that the appellant had been warned about the type of
misconduct involved). In fact, the agency attempted to deter the appellant’s
behavior, practicing progressive discipline by issuing her three suspensions and
entering into an LCA prior to resorting to a removal action. Contrary to the
appellant’s assertions, PFR File, Tab 3 at 9-10, this evidence demonstrates that
she has little rehabilitative potential, as she continued to engage in misconduct
8
despite being given ample opportunities to correct her behavior, see Arenz v.
Department of the Army, 51 M.S.P.R. 88, 99 (1991) (finding removal reasonable
when the appellant had shown a lack of rehabilitative potential after repeated
misconduct for which he had been reprimanded), aff’d, 976 F.2d 746 (Fed. Cir.
1992) (Table). IAF, Tab 7 at 25.
¶13 While significant, the mitigating factors, including the appellant’s 26 years
of Federal service, her excellent performance reviews, and the fact that she took
responsibility for her actions, do not outweigh the evidence supporting removal.
IAF, Tab 7 at 43-44; PFR File, Tab 3 at 8-10. Therefore, we agree with the
administrative judge’s finding that there was no basis to warrant mitigation. ID
at 4.
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriat e for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice , the
Board cannot advise which option is most appropriate in any matter.
9
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addr essed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.